The decision against counter-terrorism surveillance of telephone calls from outside the US has been struck down.

It really isn't a surprise, both in terms of the standing issue and the precedents in the case.

After all, a Carter-era case supports warrantless searches and surveillance for national security purposes, and holds it to be an inherent presidential power. In 1980, the Fourth Circuit Court of Appeals ruled in United States v. Truong Dinh Hung (629 F.2d 90 , that the President did possess the authority to conduct such searches (and, by inference, wiretaps) without a warrant.

Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. . . .The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S. Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.

Similarly, so did the Foreign Intelligence Surveillance Court of Review noted in In re: Sealed Case No. 02-001 (310 F.3d 717).

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

And, as noted by one former federal prosecutor, there are a couple of dozen of examples of situations in which warrantless searches of American citizens have been upheld by various courts, up to and including the US Supreme Court.

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

And those are cases of warrantless searches and detentions of Americans that are directed at Americans -- not cases in which the words of Americans are incidentally intercepted in the course of monitoring foreign communications not covered by the protections of the US Constitution at all!

Posted by: Greg at 08:21 AM | Comments (1) | Add Comment
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